Citation: Regina v Attallah [2005] NSWCCA 277
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2005
Judge(s): James J (with Buddin J and Rothman J agreeing)
Background
The appellant was convicted in the District Court of two offences of supplying not less than a large commercial quantity of a prohibited drug, one count for heroin and one for cocaine, over a period from May 1999 to April 2001. The conduct occurred at an unlicensed brothel in Bankstown, where the appellant regularly supplied small quantities of drugs to prostitutes employed there, and also facilitated street sales through an older man stationed outside the premises. The Crown case relied on the aggregation of many individual small transactions to reach the threshold of one kilogram for each drug.
The trial judge sentenced the appellant to imprisonment for life on each offence, to be served concurrently. The appellant challenged both his convictions and his sentences on appeal to the Court of Criminal Appeal.
A co-accused, who participated in the same enterprise for a shorter period, was convicted of the lesser offences of supplying a commercial quantity (rather than a large commercial quantity) and was not a party to the present appeal.
Legal Issues
- Whether the trial miscarried because a witness gave evidence, during re-examination, that she feared the appellant due to a fatal shooting involving members of his family
- Whether repeated outbursts by the appellant's family members and the appellant himself in the courtroom caused the trial to miscarry
- Whether improper remarks by the Crown Prosecutor in closing address to the jury infected the verdict
- Whether the trial judge's directions on the element of quantity (specifically the requirement for the jury to be satisfied of aggregate supply reaching the large commercial threshold) were erroneous or inadequate
- Whether the trial judge's directions on the potential unreliability of certain witnesses were adequate
- Whether the life sentences imposed were manifestly excessive, given the nature of the offending and whether the case fell within the worst category of such offences
Decision
The Court dismissed the conviction appeal on all grounds. The various complaints about the witness's evidence of fear, the courtroom outbursts, the Crown Prosecutor's closing address, and the jury directions on quantity and witness reliability did not, individually or collectively, amount to a miscarriage of the trial proceedings. The Court found the jury directions, while examined critically, were sufficient in the circumstances.
On the sentence appeal, however, the Court found that the life sentences could not be sustained. The sentencing judge had treated the case as falling within the worst class of offences of this type. The Court rejected that classification. The offending, though serious and sustained, involved the supply of small quantities to drug users, many of whom were already addicted, with the large commercial quantity reached only by aggregation across a lengthy period. That factual foundation did not support a finding that the case was among the worst of its kind, which is a prerequisite for imposing the maximum penalty of life imprisonment.
The Court re-sentenced the appellant to a fixed term of 24 years with a non-parole period of 18 years on each count, noting that concurrent sentences were appropriate because both offences arose from the same overlapping course of conduct over the same period.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- In lieu of the life sentences, the appellant sentenced to 24 years' imprisonment with a non-parole period of 18 years on each count, commencing 11 April 2001 and expiring 10 April 2019, sentences to be served concurrently
- Earliest eligibility for parole: 10 April 2019
Key Takeaways
- A life sentence for supplying a large commercial quantity of a prohibited drug requires the sentencing court to be satisfied that the case falls within the worst category of such offending; that classification cannot be reached merely because the offence is serious and sustained.
- Where the large commercial quantity threshold is reached only through the aggregation of many small individual sales to drug users over an extended period, that factual basis will not necessarily place the offending in the worst category warranting the maximum penalty.
- Concurrent sentences are appropriate where two separate drug supply offences arise from the same course of conduct occurring over the same period with substantial overlap.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that trial irregularities including prejudicial witness evidence, courtroom disruptions, and prosecutor commentary must each be assessed for actual miscarriage, and the presence of such events does not automatically invalidate a verdict.
- Adequate jury directions on the aggregation element in large commercial quantity charges are necessary, though the sufficiency of directions will turn on the particular circumstances of the trial.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25(2), 33(3)(a)
- Crimes (Sentencing Procedure) Act (NSW), ss 3A, 21A
- Evidence Act (NSW)
Cases:
- Azzopardi v The Queen (2001) 205 CLR 50
- Pearce v The Queen (1998) 194 CLR 610
- RPS v The Queen (2000) 199 CLR 620
- Veen v The Queen (No 2) (1998) 164 CLR 465
- R v Harris (2000) 50 NSWLR 409
- R v Stewart (2001) 52 NSWLR 301
- R v Liristis (2004) 146 A Crim R 547
- R v Clark (2001) 123 A Crim R 506
- R v Hamzy (1994) 74 A Crim R 341
- R v Chung [1999] NSWCCA 330; [2001] NSWCCA 484
- R v Morgan (1993) 70 A Crim R 368
- R v McCullough (1982) 6 A Crim R 274
- R v Cheung Wai Man (unreported, 22 March 1991)
- Roulston [1976] 2 NZLR 644